The plaintiff, SM, allegedly was injured in January 2001

This appeal requires us to decide whether a New York court’s award of damages for lost wages to an undocumented alien injured in a workplace accident is preempted by federal immigration policy. We hold that an employer, general contractor, or property owner whose negligence or violation of New York’s workplace safety statutes causes injury to a worker may not avoid liability for the worker’s lost wages by virtue of the worker’s status as an undocumented alien. Such a rule is not only compatible with, but furthers, Congress’s policy of deterring the hiring of undocumented aliens.

The plaintiff, SM, allegedly was injured in January 2001, when he fell from a scaffold while installing siding as an employee of J & C Home Improvement. The plaintiff commenced this action against various entities alleged to be property owners, general contractors, or their agents at the site of the accident. J & C was not named as a defendant, either in the plaintiff’s action or in the third-party action brought by three of the defendants. The complaint alleged common-law negligence and violations of Labor Law §§ 200, 240 and 241 (6). In his bill of particulars, the plaintiff asserted that as a result of his injury he was incapacitated from employment and he was seeking, inter alia, damages for lost earnings.

The plaintiff immigrated to the United States from Poland in November 2000. He testified at his deposition that he was not aware of his immigration status, but he acknowledged that he did not have a Social Security number. By counsel, he disclosed that he was in the United States on an extension of his original tourist visa. In response to a discovery demand made by the accident defendants CC Corp. and VP Inc. and enforced by the Supreme Court, the plaintiff acknowledged that he was not in possession of any of the documents enumerated in the federal immigration statutes and regulations that would demonstrate his eligibility for employment in the United States.

CC Corp. and VP Inc. moved for summary judgment dismissing the plaintiff’s lost wages claim on the ground that the plaintiff, as an undocumented alien, was not entitled to recover unearned past and future lost wages in a personal injury action, pursuant to the Immigration Reform and Control Act of 1986. CC Corp. and VP Inc. argued that the plaintiff cannot be awarded wages that the IRCA prohibits him from earning. The defendants and third-party plaintiffs, JT, Celebration, LLC, and New York City Partnership Housing Development Fund Company, the defendant D & Sons Construction Corp., and the third-party defendant separately moved for the same relief.

The Supreme Court granted the motions and, on constraint of Hoffman, dismissed the claim for lost wages. The court reasoned that sanctioning the recovery of lost wages by an undocumented alien for work not performed would run contrary to both the letter and spirit of the IRCA.The plaintiff appeals.

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